The following papers were reviewed by the Court on this motion: Notice of
Motion, Affidavit in Support of Motion to Late File a Claim with Exhibits, a
Claim and an Affidavit in Support of an Application for a reduction of filing
fees, received on October 6, 2006, a second Notice of Motion; Affidavit in
Support of Motion to Late File a Claim with Exhibits, including a copy of the
notice of intention to file a claim, a Claim and an Affidavit in Support of an
Application for a reduction of filing fees stamped received on October 16, 2006
and an Affidavit in Opposition to the Claimant’s Motion to Late File a
Claim. Claimant, Kenneth Warren, a pro se litigant, moves this Court for
leave to file a late claim pursuant to Court of Claims Act § 10(6).
Claimant separately served and filed two almost identical copies of his motion
with the Court and upon defendant, the State of New York, in this matter. The
two copies differ only in that the second document, which was served upon
defendant two days after the first, contains claimant’s notice of
intention to file a claim. Defendant received the second document on October
12, 2006 and responded to the motion on October 23, 2006. Defendant concedes
that it was served with claimant’s notice of intention to file a claim on
February 16, 2005.

In his notice of intention to file a claim, claimant alleges that his injury
occurred on November 14, 2004 at 1:30 p.m. in the Altona Correctional Facility
gymnasium. He fails to provide any further details concerning the November 14,
2004 incident in his notice of intention.

However, the notice of intention continues that the claim:

“begins on Dec 2 2004 at Franklin C. F. Clinic when my requested xray
examination was terminated before completion by facility technician. I was
denied proper and adequate diagnostic evaluation prior to a delayed surgery,
which was Dec 11 2004. Staff failed to forfill my scheduled appointment with the
orthopaedic specialist. My full length leg cast was intended for 4 weeks, it
stayed on 3 weeks longer than intended. The negligence prohibited me timely
rehabilitating treatment that my leg desperately needed as reccomended. The
effect of delayed surgery and the non-compliance to follow the surgeons
instruction to remove my cast at the reccomended time, created a condition which
may prohibit or deny me complete functional movement and usage of my knee for
the rest of my life. My leg cast was removed Jan 28 2005. I am filing this
under the Continuous treatment
doctrine.”[1]

Claimant then filed a claim with the Clerk of the Court of Claims on October 6,
2006 which was assigned claim number 112852 by the Clerk. Claimant presented a
copy of his filed claim as the proposed claim in this application. Defendant
raised a number of jurisdictional defenses in its answer to claimant’s
filed claim including improper service.[2]

In his proposed claim, claimant alleges that he injured his left knee while
incarcerated at the Altona Correctional Facility on November 14, 2004 in the
gymnasium of the facility. The proposed claim outlines the medical treatment
claimant received for his injury at various correctional facilities. Claimant
then alleges that defendant failed to properly diagnose or treat his injury.
Claimant also asserts, inter alia, that defendant, through its agents,
harassed him, engaged in retaliatory acts against him and violated his
constitutional rights. In addition, claimant contends that a false misbehavior
report was filed by one of defendant’s employees which resulted in his
being improperly confined in “keeplock” for twenty days at the
Clinton Correctional Facility. Damages in the amount of 1.7 million dollars are
sought.

In support of his motion for late claim relief, claimant sets forth that he was
unaware of the filing period required by the Court of Claims Act. He asserts
that defendant had notice of the essential facts of his claim because on
February, 16, 2005 he served a “Notice of Intent” on the Attorney
General’s office, by certified mail return receipt requested. Claimant
states that he believed that his claim accrued on December 2, 2004 and that by
serving the notice of intention on February 16, 2005, it was served in a timely
manner. He now contends that he was mistaken and that his claim actually
accrued on November 14, 2004, thus necessitating the present application for
late claim relief. He sets forth without elaboration that his claim is
meritorious and that defendant has not been prejudiced. Finally, he states that
he has no alternate remedy.

It is well settled that “[t]he Court of Claims is vested with broad
discretion to grant or deny an application for permission to file a late
claim” (Matter of Brown v State of New York, 6 AD3d 756, 757
[2004]). In determining whether relief to file a late claim should be granted
the Court must take into consideration the factors set forth in Court of Claims
Act § 10(6) (Bay Terrace Cooperative Section IV, Inc. v New York State
Employees' Retirement System Policemen's and Firemen's Retirement System, 55
NY2d 979 [1982]). The factors are not necessarily exhaustive, nor is the
presence or absence of any particular one controlling (id.). Those
factors are whether the delay in filing the claim was excusable; whether the
defendant had notice of the essential facts constituting the claim; whether the
defendant had an opportunity to investigate; whether the defendant was
substantially prejudiced; whether the claim appears to be meritorious and
whether the claimant has any other available remedy. A proposed claim to be
filed, containing all of the information set forth in CCA § 11, shall
accompany any late claim application.

Claimant has failed to offer any acceptable excuse for the delay in filing the
claim. The next three factors, notice, an opportunity to investigate and
prejudice are interrelated and as such will be considered together. With
respect to notice, claimant alleges that defendant had notice of the essential
facts of his claim through the notice of intention. Defendant acknowledges that
it was served with a notice of intention but asserts that it was untimely. The
notice of intention was served only four days after the 90-day statutory time
limitation expired. Nonetheless, not all of claimant’s present
allegations were contained within the notice of intention to file a claim. The
allegations in the notice of intention were limited to the negligence and
medical malpractice claims raised therein. Thus, in regard to the medical
malpractice and negligence claims the Court finds these factors to weigh in
claimant’s favor (Cole v State of New York, 64 AD2d 1023 [4th Dept
1978], Fowx v State of New York, 12 Misc 3d 1184A [Ct Cl 2006]). However
with respect to the remaining allegations first raised by claimant in this
motion, the Court finds that their absence from the notice of intention
substantially prejudiced defendant. Claimant failed to provide any notice of
those claims in his notice of intention which impaired defendant’s
opportunity to investigate the claims. Consequently, defendant’s first
notification of the remaining claims was not until the claim numbered 112852 was
filed almost two years after the subject incident. Therefore, these factors
weigh in defendant’s favor for the remaining claims put forth by claimant
in the present application.

The most significant issue to be considered is that of merit. To permit the
filing of a legally deficient claim would be an exercise in futility (Savino
v State of New York, 199 AD2d 254 [2d Dept 1993]).

In order for a claim to “appear to be meritorious”: (1) it must not
be patently groundless, frivolous, or legally defective, and (2) the court must
find, upon a consideration of the entire record, including the proposed claim
and any affidavits or exhibits, that there is reasonable cause to believe that a
valid cause of action exists. ...[T]he court need only determine whether to
allow the filing of the claim, leaving the actual merits of the case to be
decided in due course. While this standard clearly places a heavier burden on a
claimant who has filed late than upon one whose claim is timely, it does not,
and should not, require him to definitively establish the merits of his claim,
or overcome all legal objections thereto, before the court will permit him to
file (Matterof Santana v New York State Thruway Authority, 92
Misc 2d 1, 11 [Ct Cl 1977]).

Addressing the claims of negligence and medical malpractice the Court notes
that “[t]he distinction between ordinary negligence and malpractice turns
on whether the acts or omissions complained of involve a matter of medical
science or art requiring special skills not ordinarily possessed by lay persons
or whether the conduct complained of can be assessed on the basis of the common
everyday experience” (Matter of Barresi v State of New York, 232
AD2d 962, 963 [3d Dept 1996], quoting Smith v Pasquarella, 201 AD2d 782,
783, quoting Miller vAlbany Medical Center Hospital, 95 AD2d 977,
978). Although claimant states that one of his causes of action is for
negligence his allegations essentially relate to the adequacy of his diagnosis
and treatment. Such acts and omissions involve medical science and cannot be
evaluated based upon everyday experience, therefore the allegations are
indicative of a claim for medical malpractice.

In order to establish the appearance of merit in a medical malpractice claim,
claimant must set forth that defendant departed from the accepted standard of
medical care, and that such a departure was a proximate cause of the injury
(Mullally v State of New York, 289 AD2d 308 [2d Dept 2001]). General
allegations of medical malpractice that are unsupported by competent evidence
establishing the essential elements are insufficient (Torns v Samaritan
Hosp., 305 AD2d 965, 966 [3d Dept 2003]). “[E]xpert medical evidence
clearly is required to demonstrate that the diagnosis and treatment rendered to
claimant by state personnel departed from accepted medical practices and
standards” (Matter of Perez v State of New York, 293 AD2d 918, 919
[3d Dept 2002]).

Claimant has failed to present sufficient evidence, namely expert medical
evidence, to support the allegations of medical malpractice in this matter.

Claimant next alleges that a false misbehavior report was taken into
consideration at his disciplinary hearing, certain correctional rules were not
followed by defendant and that his constitutional rights were violated.

The allegedly false misbehavior report was apparently taken into evidence at a
disciplinary hearing which took place on or about December 3, 2004. Claimant
also states that defendant violated Correction Law §§ 138(4) and 139
as well as 7 NYCRR §701.11.[3] Clearly,
defendant is entitled to absolute immunity for the discretionary determinations
reached in conjunction with the disciplinary hearing as well as the decision to
file a misbehavior report (Arteaga v State of New York, 72 NY2d 212
[1988]).

Claimant asserts that the staff at the Clinton Correctional Facility harassed
him in retaliation for the allegations made in the false misbehavior report and
that his physical therapy was discontinued after he complained of pain during
the sessions. It is well settled that there is no common-law cause of action to
recover damages for harassment in the State of New York (Monreal v New York
State Department of Health, 38 AD3d 1118 [3d Dept 2007]; Daulat v Helms
Bros. Inc., 18 AD3d 802 [2d Dept 2005]). It appears as though most, if not
all, of claimant’s allegations regarding retaliation occurred prior to
October 6, 2005.

To the extent that claimant’s allegations suggest an intentional tort,
claimant has one year from the date of accrual to make an application to file a
late claim (see Court of Claims Act § 10[6]). As the motion to file
a late claim was filed on October 6, 2006 the court is without jurisdiction to
entertain any of the intentional tort allegations which occurred more than one
year prior to that date.

Additionally, the Court of Claims should not imply a State Constitutional
remedy when an adequate alternative remedy is available to claimant (Waxter v
State of New York, 33 AD3d 1180 [2006]; Martinez v City of
Schenectady, 97 NY2d 78 [2001]; Remley v State of New York, 174 Misc
2d 523 [Ct Cl 1997]). Claimant could have sought review of the disciplinary
hearing in an Article 78 proceeding brought in Supreme Court (Coleman v
Goord, 39 AD3d 1048 [3d Dept 2007]; Matter of Burgess v Goord, 34
AD3d 948 [3d Dept 2006]; Matter of Nelson v Goord, 33 AD3d 1135 [3d Dept
2006]) or, as he did in this matter, filed a claim seeking various tort remedies
in the Court of Claims.

Consequently, this Court holds that the proposed claim lacks the appearance of
merit and determines that this factor, as well as the availability of
alternative remedies, weighs against the granting of claimant’s motion.

Therefore, for the foregoing reasons, claimant’s motion to file a late
claim is denied.

[2].Although not raised by defendant and not
reached by the Court in this Decision and Order, it appears that claimant may
have served his original claim improperly.

[3].Correction Law § 138(4) provides that
“[i]nmates shall not be disciplined for making written or oral statements,
demands, or requests involving a change of institutional conditions, policies,
rules, regulations, or laws affecting an institution.” Correction Law
§139 provides for the commissioner to establish grievance procedures for
each correctional facility. 7 NYCRR §701.11 is the Code of Ethics for the
inmate grievance resolution committee.